Scrivener's Error

Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

26 March 2015

So why does the entertainment industry in general — and the publishing industries and their distributors in particular — act as if it not only necessarily does predict future results, but that it is the only way to predict future results? I suppose I could be cynical <SARCASM> (what? me cynical?) </SARCASM> and blame it on greed and deception, and in one sense I wouldn't be far off. I suppose I could also blame it on a revolt against securities law by other management memes... but then, recalling the purpose of the SEC's mandatory-disclosure model of securities regulation, we'd just be back to greed and deception.

No, the best explanation is a particular kind of magic — one closely related to counting angels on the head (or point) of a pin. Which, with its origin in Western medieval theology, is in the end all too apt...

Believe it or not, what actually set me off on this particular path was the recent announcement that Heinz and Kraft Foods intend to merge. More than anything else, this proposed merger represents a desperate attempt by existing entrenched capital to avoid the consequences of changing market characteristics by getting bigger, and therefore being able to take more advantage of economies of scale (usually by unfairly squeezing compensation offered to suppliers and its own workforce, thereby justifying increased executive compensation). As should be obvious from reading this blawg going back a number of years, I'm no fan of conglomeration or consolidation for the sake of purported advantages in efficiency, and not just on an ideological basis. There's a very specific reason for that skepticism: I have seen even less evidence that markets — especially markets in or related to the arts — will be constant (or even predictable) than I have for chorus lines of angels in my sewing kit.

Exhibit A: Sixty years ago, what music there was in popular awareness was largely instrumental, jazz/big-band (don't get me started on that corruption, we'll be here for hours) with possibly appended vocals, static-location, and passive. Thirty years ago, what music there was in popular awareness had shattered into a mixture of vocal and instrumental works in multiple purported "genres" (which, in reality, do not have the coherence demanded of a genre; they are better termed "performance and marketing styles" than anything else, and even that conceals more than it reveals), moderately mobile but on dedicated devices, and with an increasing sense of user participation (not limited to dancing!). Now... it's impossible to tell, except that the dedicated playback device is a steadily (and rapidly) decreasing means for people to "consume" music.

Exhibit B: Sixty years ago, there was still effective censorship of literary works in many markets, requiring a trip to an out-of-state bookstore for many residents to get a copy of Ullyses. Admittedly, this was no longer directly governmental censorship... but writers like Joyce and Roth and even Orwell were not kept where impressionable kids could find them without a diligent search. Thirty years ago, the raging idiocy of subject-matter censorship had moved down in age groups, primarily focusing on teen-and-younger-market works — not by encouraging parental involvement in what kids were reading, but by trying to restrict what was available for kids to read in the first place. Now... manga on every internet-connected device, not excluding tentacle porn.

Exhibit C: Sixty years ago, a diligent fiction writer publishing four pieces a year in the top periodical markets would be middle class. Thirty years ago, that same writer would be around the poverty line. Now... I'm not sure that there are as many as four top periodical markets for fiction, regardless of genre or style or even language.

I think I've made my point here: Just as past performance does not necessarily predict future results in finance, past context (content) in the arts does not necessarily predict future content (context) in the arts. It's long past time for industrial actors to stop pretending that:

The branding applied after the work of art is made complete has anything whatsoever to do with its success, commercially or artistically (this is a hint to, among others, publishers who try to proclaim that there is such a thing among a discernable segment of its end-users as affiliation with anything except the author... with one huge exception in romance fiction that got that way through a combination of unfair trade/commercial practices and focusing on specific aspects of the content)

The past bombing of an author's work under a given authorial name accurately predicts future sales of that author's works if the future works are of comparable (or better) quality and are given the same marketplace opportunity

There is such a thing as "the same marketplace opportunity" for distributed copies of works in the arts in the first place, let alone one with any predictability

22 March 2015

These are so serious-minded that I obviously haven't had enough caffeine.

This is why I shall no longer tinker with the machinery of death... and advocate isolating not just the courts themselves, but the machinery of justice, from electoral politics. Especially in the aftermath of Willie Horton, we should have learned this by now.

Yeah. And his identity and ordinary business practices rather blow up the entire argument.

To start with, Mr Yankovic is famous for asking permission. He does it even when he doesn't need to; he's an excrutiatingly polite humorist. But in this instance, my suspicion is that he asked permission only of the more-recent of the two potential sources, particularly given the vocal inflections he used. Under the basic property-law principle that one cannot give binding permission without actual authority to do so — and the copyright principle that every infringer is potentially liable, regardless of purported "best practices" or invalid "permissions" (getting permission only influences the remedy, not the liability) — if the "Blurred Lines" verdict has real force, Mr Yankovic is infringing the Gaye copyright. The particular elements in "Word Crimes" that are drawn from "Blurred Lines" are precisely those that a rational jury would have found improperly copy from "Got to Give It Up." Mr Yankovic is, therefore, a second-order copyright infringer.

But parody protects Yankovic, right? Not so fast. Under the insanely self-referential, ill-considered, almost-completely-without-foundation distinction between "parody" and "satire" in US copyright law, "Word Crimes" is not a parody. Its object is not mockery of "Blurred Lines"; and since the parody theory requires a pretty close linkage between the new work and its target, one would need to find mockery of "Got to Give It Up" in "Word Crimes" for the reasoning in 2Live Crew to provide much of a shield. And this is because satire is explicitly excluded from the parody defense, since it can "stand on its own two feet." I'm afraid that this particular matter demonstrates that they're both left feet, and that one of them may be a peg leg... because the practical and literary-theoretical reality is that both parody and satire are at least as much about the reputation of the target work(s) as they are about the work(s).

I'm not at all certain that any part of this particular controversy advances the progress in the useful arts... but that's primarily because those who are asserting superior rights are not, themselves, creators of the useful arts. They are transferees only. This is not to say that transferees should have no rights — that would lead to some really perverse incentives — but only that transferees cannot be trusted to comport their conduct with the underlying purpose. And that is a ripe subject indeed for parody and satire...

17 March 2015

So, in yet another example of the simultaneous over- and under-inclusive reach of copyright law, the eminently forgettable "Blurred Lines" has been found by a jury to infringe the copyright in a Marvin Gaye song (that passed into near-oblivion before most of Mr Thicke's and Mr Williams' listeners were born). There are a lot of problems with the verdict, beginning with the fact that it's far from final — it's not even the judgment of the trial court, as motions for judgment as a matter of law (formerly called "judgment notwithstanding the verdict," and that's what it's called in the half-dozen or so most-relevant historical decisions in similar postures) aren't even due yet! These motions essentially say "Hey, Judge, you heard all the evidence, too, and you gotta agree with us that no rational juristy could have come to that verdict, so throw it out already." The fun would truly be complete if handled by the notorious R.B.G. — perhaps in an opinion of trochaic rhymes, like so much other (c)rap.

What the hell? This is a jury's verdict on music. Why bring in bad classificational memes from the philological study of poetry, memes that ignore substance in favor of form and try to force interpretation to fit the form? Next thing we know, you'll be citing arrogant, ideologically driven high-falutin' literary theory from the seventies in an effort to make us think the entire proceeding was a farce.

Indeed.

This entire case is a more-subtle-than-it-seems demonstration that process and product are two different things, especially in the arts, and that measures that are intended to encourage or regulate one of the two seldom do so predictably in the other. In short, what we have here is failure to ruminate.

Thread the First: Copyright doesn't care about process. Really. There are a few outlier matters out there that claim to look at drafts of final works in order to determine infringement; however, the real dispute in almost all of those cases is not truly a copyright dispute, but an authorship and/or compensation dispute that has been shoehorned into copyright due to copyright's procedural advantages (federal court, readily available injunctions, possible recovery of attorney's fees, and so on). The ill-founded Calliou opinion from the Second Circuit is an excellent (and somewhat less emotionally charged) example. Not once in that case do the judges (no jury, it was decided on summary judgment and not-quite-entirely reversed on appeal) express anything about artistic process that is not an inference of pure mechanics. This is the equivalent of describing Picasso's Guernica solely in terms of brush-stroke technique.

But this may be necessary, as both a matter of law and a matter of reality. Judges (and lawyers more generally) are poor judges of the arts, as Justice Holmes recognized over a century ago in Bleistein. Further, due to the peculiar worship-of-the-past nature of legal writing — after all, the best way to win a legal argument is to demonstrate that someone has said exactly the same thing before in the most-closely-analogous circumstances possible — judges and lawyers are inherently ill-suited to evaluate "influence," and particularly to determine how much "influence" is too much.

Thread the Second: The arts — especially music, especially commercial music, and extra-especially collaborative efforts in commercial music — are at least as much about process as they are about product. Indeed, in this particular instance the process of creating "Blurred Lines" is probably far more important than the song itself... if not entirely in accord with the mythology of the inspired artist creating something from nothing. I can count on the fingers of one finger the number of federal judges with substantial, long-term exposure to the entire process of creating music (even interpretive efforts like turning a nineteenth-century orchestral score into a concert performance) prior to having their minds forever warped by law school; there are three times that many among legal academics, but one is no longer involved with law teaching. I don't think things are even that generous for either the visual arts or film or substantial works of fiction (that is, more than a few very short stories in mimeographed/photocopied student "literary magazines").

But this may be necessary, as both a matter of law and a matter of reality. Just think for a moment: As an evidentiary matter, are we going to require an honest, verifiable, contemporaneous record of how every work in the arts is created, just so we can later determine influences if there's a later dispute? Worse, doesn't that assume both that all influence is conscious and that all such records are, umm, honest (e.g., Calliou, as noted above)? And, more to the point, doesn't this problem overtly — and overly — reify "the Arts are Special" into an excuse for a wide variety of commercially cynical unfair competition?

Thread the Third:Release the huskies and make some yellow lines in the snow (and my choice of that link is with multiple layers of malice aforethought). The real problem with the "Blurred Lines" jury verdict is precisely that: It is a mere jury verdict. It has no reasoning or explanation. It cannot be used to predict what will happen in the next dispute... except that defense attorneys will desperately attempt to get into a different district with a different jury pool! Dammit, there's a reason that even the most-extreme vision of the common law does not defer to jury verdicts in explaining what the law is. That, however, is precisely what almost everyone who is commenting on this unreviewed verdict is doing.

The entire dispute demonstrates that the combination of hurt feelings, commercial pie-slicing, and disparate views of what qualifies as a copy and what qualifies as an homage make for the byproduct of huskies in the snow: Blurred, yellow, ephemeral lines that will be obliterated by the following sled and completely obscured by the next snowfall.

15 March 2015

I didn't celebrate Pi Day yesterday. For one thing, Jaws is not fond of the all-organic-and-natural crusts found on the pies in this area from stores with little or no chance of insect accompaniment (and my kitchen doesn't allow me to bake anyway). For another, yesterday wasn't really Pi Day unless you're an ignorant, self-centered American with no military background, or perhaps a resident of Belize; the date yesterday was either 15.03.14 or 14.03.15 everywhere else. The eldest remora had a good time trying to explain this where he is now...

The NYT today managed to print two articles at opposite ends of the intelligence spectrum on non-NYC-related issues.

(note the poor journalistic-convention paragraphing?)

On the one hand, there's a decent discussion of the not-at-all-surprisingly poor record of mutual fund managers against the market, which is an inevitable consequence of the Second Law of Thermodynamics and the exploding, insane compensation structure of the securities/investment industry. The article fails to take the next step — the irresistable pressure on fund managers (from low to high levels) to do something to justify their pay, combined with a transaction-cost structure right out of seventeenth-century mercantilism — but that step is just sitting there to be taken. The article also fails to mention that its conclusions are inevitable consequences of Szilard's work from the 1920s to the 1940s — work that is studied by every advanced chemistry undergraduate and chemical engineering student, and most physics (and some life-sciences) undergraduates.

And then there's another example of Frank Bruni's ignorance, this time concerning "elite" (that is, selective-admission) colleges and their alleged lack of value (n.b. Bruni himself is a graduate of the University of North Carolina in journalism...). What I find most telling about his shriek is that not one of the examples he lists is a student from engineering or the sciences, or who went into government or other public service. His examples are all entrepreneurs — even the "teacher" actually just runs a charter school, not a classroom in southeast Chicago (and nonetheless went to an undergraduate institution that — in the sciences — is considered selective). Indeed, his "money shot" measures an undergraduate institution's success level by how many of its graduates successfully managed to make a tech start-up take off in the opinion of one venture-fund Ivy-League sleazebucket manager, in a startling example of the manner of the question predetermining the answer.

Perhaps Mr Bruni's article has some psychological value, and it's just the evidence (and his own perspective as a non-elite!) that's flawed. Perhaps he's right to implicitly neglect that "highly selective" extends all the way across the curriculum at only a dozen or so undergraduate institutions (and, I should add, that means only three, or perhaps four, of the Ivies). Neither failure supports his conclusion... and that's supposed to be a characteristic of good, or even competent, journalism.

And if you need further proof that both the legal profession and the delegation of justice to elected officials has become unworkable, consider the violation-of-legal-ethics-rules attempts to shun an elected Orange County judge for doing his job in a different case. If the California Bar was doing its job, it would immediately open an ethics investigation of every Cal. Code Civ. Proc. § 170.6 petition filed in Orange County against Judge Goethals. Some of them might be legitimate... but "papering" as an unwritten policy is unethical, although an inevitable consequence when — at the behest of elected officials like their bloody boss — prosecutors forget that their only acceptable goal is justice and not convictions.

09 March 2015

Long overdue: Credit-reporting agencies begin to impose accountability in their systems. I emphasize "begin": The new program still does not include a true post-bankruptcy fresh start. It's not that the fact of a bankruptcy and discharge shouldn't appear on a credit report — it's that everything that was discharged should be expunged. This is one of the ways people are pushed into subprime lending for the rest of their lives over, say, a medical bill...

This connects to the preceding item in a darker, less-examined way, too. I purposely cited "Picasso" in the preceding paragraph precisely because he was not an upper-middle-class Northwest European man. John Constable as the exemplar of all that is great and good? Really? Next thing you know, somebody will note the rampant antisemitism (all Semites, not just the Jerusalem quarter of the family) in the fine-art world and we'll never actually discuss or appreciate the actual works ever again! As a specific instance, ask yourself, linguistically, where the name "Alhambra" comes from...

One problem with the distributive arts is that it often involves choosing sides based on the distribution, not the arts. Case in point: Film, Netflix, and cinema owners. The ultimate problem here is that both Netflix and the cinema owners are seeking efficiency in distribution... and that's not all that consistent with "art" in the first place, let alone with the actual needs of the audiences. I've ranted here before on the miserable experience of attending a film in the US with even moderate visual impairments, let alone a desire (or need) for better back support than found on a bus-stop bench for a two-hour-plus event in which we're expected to remain in our seats. Netflix has its own problems and insensitivities; but this particular fight is particularly stupid, and strongly resembles two-bit gang leaders facing off over a rubber chicken.

As of this morning, approximately one-third of what I learned about administrative law is wrong: The Supreme Court has overturned the Paralyzed Veterans requirement that if an agency wants to change an existing interpretation, it must engage in the full notice-and-comment procedure.

Wow. And Perez(PDF) is 9–0 (ok, there are two concurring opinions, but still).

It sounds hypertechnical, doesn't it? But it matters. Consider, for a moment, the analogous effect on legislation: That any change to the filibuster rules in the Senate requires a full bill passage and either signature by the President or veto override. (And ponder the corresponding change in the House: Removal of the Speaker's power to block bills from coming to the floor for a vote, and the subordinate powers of the Rules Committee, might also require the same.)

More to the point, this represents a conflict locus between property-like and contract-like visions of government. In property law, there's grudging acknowledgement of so-called "dead-hand control" as embedded in property law — especially real-property law — but it's generally considered a bad thing, both at a theoretical level and in the courts. In contract law, however, the exact corollary of "settled expectations of the parties" is reified as the only acceptable means of commerce under written agreements. The Court has just decided that administrative dead-hand control is not necessarily a good thing, despite the settled expectations of parties affected... who probably were dealing with a captured agency in the first place.

And that's the real crux of the problem. The rise of the administrative state in the US was a response to both lack of technical expertise and gridlock, combined with a recognition that in the 1930s things were changing too fast for some critical elements of "law" to be embedded in statutes. Eighty years later it's worse.

03 March 2015

It appears that the Direct Marketing Association actually did something useful. In Direct Mkting Ass'n v. Brohl, No. [20]13–1032 (03 Mar 2015), a unanimous Supreme Court agreed that a Colorado statute that requires non-Colorado vendors to inform Colorado residents that their 'net-based purchases are subject to Colorado use (=sales) tax is unconstitutional, because that statute requires the vendors to speak with the voice of a state whose laws do not govern the vendors — or, at least, not on the basis stated (there's a procedural hedge in the opinion designed to get settlement discussions going). There was also skepticism about requiring the vendors to send a list of customers and their purchases to the state at the end of the year to assist in enforcing the use tax. This is a consequence of the insane sales-tax-is-paid-by-the-purchaser regime that applies to the 'net, in addition to "traditional" mail order, here in the US. (That such taxes are regressive and bad policy, too, never seems to make it into the discussion.)

Admittedly, this is about the first nice thing the Direct Marketing Association — whose insistence on obtaining cheaper mailing rates for those flyers that keep jamming up your mailbox is largely behind the crumbling of the US Postal Service — has done in years. But it's doing so inadvertently, because its members don't want to slip a notice in with each order that might (I emphasize "might") result in a minuscule marginal cost per order, and hypothetically discourage customers from placing orders again with vendors who comply. (That only 4% of Colorado customers, according to the opinion, pay the use tax in the first place rather undermines that last argument.)

Speaking of deception, an interesting piece on media ignorance of food science implicates an area that constantly irritates me, sort of like a flea-bite that just won't heal: The outright deception inherent in the anti-processed-food movement's rhetoric.

I have an organic diet already: I don't eat rocks. This misappropriation of a technical term in an allied area — chemistry — only serves to mask everything. In a technical and truthful sense, everything edible in a grocery store (except, perhaps, the salt) is organic, being composed of carbon and hydrogen and a few other atoms (mainly oxygen and nitrogen) as the bulk of its non-water molecular composition.

Virtually everything one eats that doesn't come from the fish counter (and even an increasing proportion from there) is a GMO. Selective breeding is genetic modification at least as much as is anything done in a lab. Wheat, for example, is a distinctly human-created crop... as are all varieties of true rice, of barley, of potatoes. Get over the "only salt-of-the-earth farmers can produce healthy food" bigotry: That way lies the Cavendish banana (for another decade or so, anyway). And the less said about the modern chicken — even, and perhaps especially, those birds purportedly raised on an "organic" diet — the better!

That the underlying problem is real is irrelevant, because the artist is not the art (or vice versa), however much, or little, they influence each other. In the end, this is just another aspect of "judging the book by its cover" — it merely extends "cover" to include "marketing department single-phrase description of the author." Both books and authors deserve better than being treated like laundry detergent. Indeed, readers deserve that books and authors are treated better than laundry detergent.

In many ways, Frank Underwood is merely a logical extension of Jimmy Carter. In both instances, their greatest achievement was obtaining the power to govern; the actual attempts at governing, not so much. Or so the early takes on Season 3 of House of Cards seem to imply... and, in many ways, remained a subtext throughout The West Wing.

An important decision in Europe regarding the (fine, visual) artist's right to proceeds from later sales of the original work gets an admirably clear explanation at the IPKat. (Judicial opinions can only aspire to that kind of simultaneous clarity and nuance.) This matters more than it appears to: It will affect not just European artists, but all artists whose originals are sold in Europe at any time; and it has some interesting implications for the current struggles over musical performances. In the US, we still separate the performer's rights (whatever they are) from the songwriter/composer's rights (whatever they are). Christie's France demonstrates that at certain fundamental levels, that's an deceptive distinction that lawyers are simply not competent to make.

"Net neutrality" is now law. The fun part is going to be the challenges to enforcement. "Fun," that is, if that word is an acronym standing for "fouled-up nonsense" (or something like that).

As a policy matter, this is long overdue. ISPs have long tried their damndest to get all of the benefits of being common carriers — such as insulation from liability for merely transmitting customers' libellous statements, see47 U.S.C. § 230 — without any of the responsibilities that go along with being common carriers. One of those responsibilities is equal treatment; it's why your phone bill does not distinguish, within calls in the same area code, with whether it's a business, a government office, or Grandma.

The problem with net neutrality is that it has been (mis)characterized as "regulation of the internet," and therefore A Bad Thing By Definition. Both ends of this rhetorical strategy are at best disingenuous. A requirement that one not discriminate is literally a regulation... but so are the purported standards of discrimination that the requirement to avoid discrimination replaces. The sole difference is that invisible private parties set those standards of discrimination; it's still regulation, it's just not necessarily a federal agency doing it. I'm also perplexed that this nature of regulation could necessarily be A Bad Thing By Definition, any more than a speed limit in a school zone is A Bad Thing By Definition. Nothing exists in a vacuum, and especially not on the internet; trying to pretend otherwise is at best foolish.

The only real question is whether the FCC has statutory authority to regulate. Keep in mind that the last set of court challenges, led by Verizon, were to similar regulations that were adopted under a different (and by its own terms much narrower) statutory section. The courts determined that the narrower section didn't quite reach far enough, but explicitly left open whether other — on its face substantially broader — authority that the FCC had not relied upon could justify treating ISPs as common carriers.

In the end, this will be a case of B'rer Rabbit ending up in the briar patch. General customer demand was going to force ISPs to upgrade their systems to the levels seemingly "required" by Netflix et al. within the next couple of years anyway; the internet "fast lane" is just a way for the ISPs to try to charge a rent to those senders whose business model most depends upon that faster access. The unstated, interesting corollary, of the FCC's decision today will be found on customer bills in three or four years after local rates get considered... and won't that be fun for everyone?

22 February 2015

This would be my reaction if the Fashion Police were to arrest me at the Oscars this evening:

That's right: I'm one of those silly people for whom function comes before form... and I'm really not buying the fashion industry's various imprecations that:

Men don't actually put anything in shirt pockets any more, so we can just do away with shirt pockets... except for the one type of men's shirt (the broadcloth dress shirt) in which men really don't put anything in the pocket, so we'll keep those.

Everyone is the fashion industry's bloody billboard and really wants and needs to proclaim — with a logo (usually some combination of ugly, pretentious, and just plain stupid) — exactly what brands of clothing one is wearing at all times. Especially for anything that is intended primarily for wear outside of an office building in Manhattan.

That goes double for shoes, and even includes shoes suitable for business-travel wear. And shoes are not for actually walking in, let alone running in — especially not if one's foot size is not more appropriate for Sasquatch (and this in an area with a high proportion of shorter-than-Vikings Asian men and women).

Despite the name, men actually do not do anything that might cause one to break a sweat in "active wear," so none of it needs to breathe at all — especially not on the sleeves, because nobody ever gets distracted or loses a grip on something when sweat drips down one's sleeves. And it's even more important to proclaim clothing brands when being inactively active!

Every belt that is not a hard-lacquer-finish strip of leather must stretch and must have an awkwardly prominent buckle.

Even in an area purportedly renowned for sudden chills, heavier-weight shirting materials are just too much; instead, we'll deal with any tendency to feel too hot with ever-thinner and ever-shinier polyester blends (yeah, that's going to help comfort).

Although I seriously doubt anyone in the fashion industry could approach the real one, on the evidence of what I've seen of late dick levels typically exceed 80%. And that's not a good thing, even given the purportedly ambiguous gender roles in the fashion industry... because "being a dick" is not a gender role.

The fashion police themselves? Should dial it back to just being a-holes.

Speaking of the Oscars, I probably won't be watching. I definitely won't be watching any pre-shows — not even in the background while I do something productive like picking burrs out of the dog's fur. I just can't build up any enthusiasm for an awards show for films most of which I have not seen thanks to the inconvenience and downright torture of going to cinema in this area. And the less said about fundamental credibility problems with the academy (and the entire film industry), the better: The Academy of Motion Picture Arts and Sciences makes the typical research-university faculty look incredibly representative, diverse, and protective of the next generation!

Congratulations to the nominees for the Nebula Awards for best speculative fiction published/presented in 2014. Not to be a broken record or anything, but the Nebulas have one of the same damned problems as the Oscars: It's far, far too soon after the close of the eligibility period. I'm still on the hold list at the library for two of the nominees for novel (and expecting me to get them at the pathetic bookstores in this area is a bit arrogant and class-warfarish when it approaches impossibility to even get to the one store that might — and I emphasize "might," given the questionable taste of the staff — have stocked them on initial release... and actually finding things at the Big Brazilian River is no better).

18 February 2015

One of Jaws's cousins had a, umm, prominent role in the Super Bowl halftime show. That shark on the far left who couldn't keep the beat? That's Bernie. At least they matched the position in the dance line to his politics! Sadly, Bernie is slightly less awkward at those things (keeping the beat and dancing) than Jaws is; Jaws saves all of his gracefulness for feeding frenzies.

No link for this one, because it's from local radio. A local Girl Scout has been taking advantage of a... predisposed-to-be-receptive clientele for her cookie sales. With her mother's support, she set up her cookie table for a day right outside a medical marijuana dispensary in San Francisco. Unsurprisingly, she had really good sales (over 100 per hour).

Slate finally realizes what some of us did six years ago and points out that commercial e-readers report your reading habits (not just sales) to vendors. Leaving aside that an awful lot of my reading isn't from commercial vendors — court documents, law review articles, etc. — I would find that unacceptable anyway. It's why I load e-texts onto reading devices (like my phone, my laptop, etc.) using a removable storage device... after stripping the DRM and using a third-party reader program that does not (indeed, cannot) report reading statistics to anyone.

In a long-overdue acknowledgement that something is wrong with the most-heavily-commercialized science journals, Nature and related journals are shifting to double-blind review of submitted articles. Double-blind review prevents both the authors from knowing their reviewers... and the reviewers from knowing the authors. The objective is to focus on the content, not on old-boy networks or reputation of institution or anything else. It (usually) works, although over time both reviewers and authors learn subtle signals that at least give away whether one is in the old-boy network — or not.

The irony that this is the one truly effective means of brand-building and brand-identification in publishing is left for others to ponder. Any "brand identification" with, say, Basic Books up to the late 1980s, was due to a combination of generalized subject-matter and distinctive editorial vision as perceived by the target audience. (The same goes for Harlequin, although it's a little harder to demonstrate because the "editorial vision" is so top-down imposed.) Nature already has a reputation as a leading outlet for serious, just-behind-the-cutting-edge-of-the-future scientific articles... but also a reputation for being closed to authors affiliated with institutions that are not considered superstars in broad ranges of current research. It's not just a cynical marketing ploy, although there's certainly an element of marketing/publicity/brand identification involved (Nature isn't a nonprofit by any means — it's a bloody vanity press!). This change is primarily about enhancing the credibility of its content. And that's a hint about how one builds a self-sustaining, long-term brand identification: It's not marketing flash, it's substance. Of course, the converse is true, too — I still avoid Nestle products whenever possible, because too many of the same people (and/or their lineal heirs) are in charge.

The down side is that sometimes reputation does, and perhaps even should, matter in determining the publication-worthiness of an article — even in a scientific journal. The closer that one gets to outside-the-laboratory implications, the more that non-data-based imprimaturs of credibility matter to the substance of the article; there is no content without context. It should matter, for example, whether an article on the relationship between tobacco use and death from lung cancer was coauthored by the general counsel and chief lab scientist at the Tobacco Institute... and that's not a hypothetical, just forty years in the past (and not at Nature).

A fluff piece pretends to ponder artists selling out without ever considering either (a) that it's called "patronage," morons, and it's a longer Western tradition than copyright (and seldom a good thing in the long run), or (b) that it's been around so long that The Who satirized it in 1967.

11 February 2015

Satire can sometimes say in five minutes what it might otherwise take "serious" journalists (especially those who continually attempt to place themselves in the center of the story without paying the price of actually doing all of the preparation) an hour… if they bother at all (what Williams "did" was not acceptable; neither was it all that uncommon).

A note to Comedy Central: I'm embedding this from YouTube because your site uses the ethically unacceptable (not to mention rude) autoplay function. Your marketing folks also need The Cone.

I don't know where Stewart is going next. But I will note that whoever wins the 2016 election, there's going to be a vacancy for White House Communications Director to be filled. Recent experience demonstrates that we can do a lot worse than someone with a well-earned reputation for deflating self-important journalists and politicians.

Libraries are still vital, if only because they're far more reliable than anything coming out of a certain arrogant and inaccurate excuse for conspiracy theories beginning with "W" and ending in "pedia." More to the point, libraries implicitly teach the necessity of relying upon, and evaluating, a variety of sources instead of a quick set of not-necessarily-accurate keywords. Hmm… does that sound like what is all too frequently taught as "legal research" these days? Might this be foreshadowing of something else on this platter of link sausages, complete with creepy background music?

A thread over at the Grauniad on the conversation about race (and other discrimination) goes spectacularly wrong — in an entirely predictable manner — by confusing "diagnosis" with "treatment." Absolutely, there must be a conversation about race, and gender/orientation discrimination, and other varities of bigotry. Yes, it's an incredibly important conversation that's going to make a helluva lot of people uncomfortable. But employing suppression and bigotry of its own as a "solution" is, to say the least, counterproductive.

The problem with "political correctness" is not with the recognition, or the conversation, or the earnest-if-humanly-imperfect attempts to keep others from suffering through the same circumstances; it is with the presumption of authenticity and the consequences of raising surface authenticity to the primary imprimatur of credibility… especially at the margins and in overlapping areas. And it's especially poisonous when it results in improper assumptions about what others have experienced themselves; an obvious example is that pale-skinned heterosexual college-educated men without an obviously non-Northwest-European surname are inherently "privileged" in all aspects of their lives… and therefore cannot be listened to, and are acceptable collateral damage. Hint: There isn't any "acceptable collateral damage" — that's the entire point of valuing individuals as individuals, although it's not to deny that there probably won't ever be a reform movement that doesn't have some collateral damage.

I welcome the conversations, and want to actually learn something and ponder and consider what to do, and then try to do it in my humanly imperfect way. But don't reify the immediate group-dynamic self-interest of certain individuals who have been ascribed credibility on behalf of Group C in place of that of Group A, all the while expecting Group B to just accept that assigning the abuse-of-power vacuum to a different owner somehow fixes the underlying problem.

And now, a purely legal/jurisprudential entry. There's a move afoot to further restrict the length of briefs presented in federal courts of appeal by modifying the Federal Rules of Appellate Procedure. I'm even more convinced than I was a couple of weeks ago that this is a very bad idea... primarily because the limits on brief length are so ineptly implemented.

What is a "word"? Well, it's anything that is counted by the word-processing software. That means that "R. 1:117" (record, volume 1, page 117) is two words... and "Santa Fe Ind. Sch. Dist., 530 U.S. at 310" is nine words. And the difference adds up over the length of a brief, especially when there are citations to multiple versions of legislative history. The obvious solution here is to go to an extreme short form that references just back into the table of authorities (which nobody really seems to use) with a pinpoint, such as "11:1097-98" (pages 1097 and 1098 of source number 11). In short, "Die Blue Book Die!"

Some parts of the brief are subject to word limits that shouldn't be. The statement of the procedural history of the case should not be; just consider the difference between an accurate and proper description of the purely procedural histories of cases that were decided below on a motion to dismiss, on a motion for summary judgment, and after a jury trial. Then there's the problem of proper tracing for a case that is back up in front of the Court of Appeals after a remand… because if one does not do that, it's not clear what issues have been preserved for appeal (or for what has already been finally decided). And the less said about lawyers and summarizing of facts, the better. And quoting verbose contract language…

Others have commented on opinion bloat; it seems to me that opinions that exceed the length of all briefs in front of them by a factor of two or more should themselves be subject to word limits, but you're not going to see the judiciary do anything like that. More to the point, the experience of the Illinois intermediate courts of appeal in imposing word limits on opinions demonstrates that it just doesn't work — too often, it leads to an easy deference to inadequate prior reasoning that is no longer relevant and/or on point in the first place, because deference is so much shorter and easier. This latter point is endemic to the common law; I just don't think it needs to be encouraged.

Finally, and most relevantly, there's a fundamental difference between "on the cutting edge of the law" (where I've done a lot of briefing over the years in both civil procedure and substantive law) and "determining which existing law applies to the facts, and whether the facts were properly established in the first place." Under most circumstances, it just takes more verbiage to be clear, persuasive, and above all lawyer-as-opposed-to-policy-wonkish for the former than for the latter. The Rules make no distinction. They should: And that's the principal problem with restricting the length of principal briefs. One can be overly verbose at 14,000 (or 12,500) words... or painstakingly concise.

In short, this is a problem of the profession more than it is of substance. Unless and until we actually teach and encourage lawyers to write concisely in everything, every attempt to control bloat is going to have serious unintended consequences. Just changing the Rules as proposed won't actually fix the problem; instead, like all too much in educational policy, it will substitute a measurement for actual evaluation just because the measurement can be done mechanically.

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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